Abortion Foes See Validation For New Tactic

By ROBIN TONER

Published: May 22, 2007

For many years, the political struggle over abortion was often framed as a starkly binary choice: the interest of the woman, advocated by supporters of abortion rights, versus the interest of the fetus, advocated by opponents of abortion.

But last month's Supreme Court decision upholding the Partial-Birth Abortion Ban Act marked a milestone for a different argument advanced by anti-abortion leaders, one they are increasingly making in state legislatures around the country. They say that abortion, as a rule, is not in the best interest of the woman; that women are often misled or ill-informed about its risks to their own physical or emotional health; and that the interests of the pregnant woman and the fetus are, in fact, the same.

The majority opinion in the court's 5-to-4 decision explicitly acknowledged this argument, galvanizing anti-abortion forces and setting the stage for an intensifying battle over new abortion restrictions in the states.

This ferment adds to the widespread recognition that abortion politics are changing, in ways that are, as yet, unclear, if not contradictory. Even as the anti-abortion forces relish their biggest victory in the Supreme Court in nearly 20 years, they face the possibility of a Republican presidential nominee, former mayor Rudolph W. Giuliani of New York, who is a supporter of abortion rights.

The anti-abortion movement's focus on women has been building for a decade or more, advanced by groups like the conservative Justice Foundation, the National Right to Life Committee and Feminists for Life.

''We think of ourselves as very pro-woman,'' said Wanda Franz, president of the National Right to Life Committee. ''We believe that when you help the woman, you help the baby.''

It is embodied in much of the imagery and advertising of the anti-abortion movement in recent years, especially the ''Women Deserve Better Than Abortion'' campaign by Feminists for Life, the group that counts Jane Sullivan Roberts, the wife of the chief justice, among its most prominent supporters.

It is also at the heart of an effort -- expected to escalate in next year's state legislative sessions -- to enact new ''informed consent'' and mandatory counseling laws that critics assert often amount to a not-so-subtle pitch against abortion. Abortion-rights advocates, still reeling from last month's decision, argue that this effort is motivated by ideology, not women's health.

''Informed consent is really a misleading way to characterize it,'' said Roger Evans, senior director of public policy litigation and law for Planned Parenthood. ''To me, what we'll see is an increasing attempt to push a state's ideology into a doctor-patient relationship, to force doctors to communicate more and more of the state's viewpoint.''

Nancy Keenan, president of Naral Pro-Choice America, said, ''It's motivated by politics, not by science, not by medical care, and not for the purposes of compassion.''

The Guttmacher Institute, a research group and an affiliate of Planned Parenthood, said recently that ''a considerable body of credible evidence'' over 30 years contradicted the notion that legal abortion posed long-term dangers to women's health, physically or mentally.

But Allan E. Parker Jr., president of the Justice Foundation, a conservative group based in Texas, compares the campaign intended for women to the long struggle to inform Americans about the risks of smoking. ''We're kind of in the early stages of tobacco litigation,'' Mr. Parker said.

All sides agree that the debate reached a new level of significance when Justice Anthony M. Kennedy, writing the majority opinion in the Supreme Court case last month, approvingly cited a friend-of-the court brief filed by the Justice Foundation.

The foundation, a nonprofit public interest litigation firm that has handled an array of conservative causes, has increasingly focused on abortion through its project called Operation Outcry. Mr. Parker said the group began hearing from women in the late 1990s who considered themselves victims of legalized abortion -- physically and emotionally -- and wanted to tell their stories. Operation Outcry, which grew to include a Web site, a national hot line and chapters around the country, eventually collected statements from more than 2,000 women, officials said.

In its friend-of-the-court brief, the group submitted statements from 180 of those women who said that abortion had left them depressed, distraught, in emotional turmoil. ''Thirty-three years of real life experiences,'' the foundation said, ''attests that abortion hurts women and endangers their physical, emotional and psychological health.''

The case before the Supreme Court involved a specific type of abortion, occasionally used after the first trimester, that involves removing a fetus intact after collapsing its skull. Justice Kennedy upheld that ban on narrower, legal grounds, but he used the Justice Foundation brief to write more broadly about the emotional impact of abortion on women.

''While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,'' Justice Kennedy wrote, alluding to the brief. ''Severe depression and loss of esteem can follow.''

Given those stakes, the justice argued, ''The state has an interest in ensuring so grave a choice is well informed.''